State v. Sparks

• Decision Date: 23 February 1915
• Docket Number: No. 18342.,18342.
• Citation: 173 S.W. 1057
• Parties: STATE v. SPARKS.
• Court: Missouri Supreme Court

173 S.W. 1057

STATE v. SPARKS.

No. 18342.

Supreme Court of Missouri, Division No. 2.

February 23, 1915.

Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge.

Asa Sparks was convicted of crime, and he appealed to the Court of Appeals, and it (180 Mo. App. 495, 166 S. W. 642) transferred the cause to the Supreme Court. Affirmed.

Defendant was convicted in the circuit court of Bollinger county on September 10, 1913, of the crime of breaking the custody of an officer, as denounced by section 4382, R. S. 1909, and he appeals from a judgment fixing his punishment at imprisonment for six months in the county jail. This appeal was first granted to the Springfield Court of Appeals, but, as the offense of which defendant was convicted is a felony, the latter court transferred the appeal to this court. State v. Underwood, 254 Mo. 469, 162 S. W. 184.

What purports to be a complete transcript of the record proper and bill of exceptions was lodged with the clerk of this court on May 19, 1914. Said transcript was so incomplete that on June 30, 1914, our Attorney General filed suggestions of diminution of record, which suggestions were by the court sustained, and the clerk of the circuit court commanded to make out, certify, and transmit to this court a full and complete copy of all record entries in his office pertaining to this cause. On September 7, 1914, the clerk complied with our command.

The only material difference between the transcript thus obtained and the record entries found in the original transcript is that the one last filed shows that the jury which tried defendant was duly sworn, that defendant was accorded an allocution before sentence, and that the motion for new trial was filed one day after the judgment of conviction had been entered. These important entries were omitted from the original transcript.

J. W. Caldwell and Wm. M. Morgan, both of Marble Hill, for appellant. John T. Barker, Atty. Gen. (S. P. Howell, of Jefferson City, of counsel), for the State.

I. Objections to Record.

BROWN, J. (after stating the facts as above).

On January 5, 1915 (the day on which this cause was docketed for trial in this court), the defendant, without challenging the correctness of the transcript sent up under our first order, filed his motion suggesting diminution of record and praying that the clerk of the trial court be commanded to send up a full, true, and complete transcript of all record entries in this cause.

This motion was overruled, and properly so, because we had already done, at the instance of the Attorney General, the very thing the defendant requested us to do.

Without committing ourselves to the proposition that we will not in any criminal case consider a motion filed in such untimely manner to amend or correct a record, we suggest that it would be far better practice, when a party suggests that any record, document, or evidence has been omitted from the transcript, or any record entry, document, or evidence has been incorrectly copied into such transcript, to file with his motion suggesting diminution true certified copies of such omitted or incorrectly copied entries, documents, or evidence. When this is not done, we will exercise our discretion to grant or overrule such motion as justice and the diligence of the movant may seem to demand.

II. Motion for New Trial.

The fact that the amended abstract of the record proper, prepared and filed by the clerk of the circuit court at our command, shows that the motion for new trial was not filed until one day after the sentence and judgment was pronounced upon defendant, precludes us from reviewing any matter of error found in the bill of exceptions (if such there be). This precise point was before us and ruled upon in the recent cases of State v. Thomas, 232 Mo. 216, 134 S. W. 571, and State v. Briscoe, 237 Mo. 154, 135 S....